Scheduling Rule quashed for survivors of trafficking
by Primisha Chudasama, Duncan Lewis
The Home Office concedes that the blanket application of the ‘scheduling rule’ was unlawfully applied when deciding whether a decision on discretionary leave to remain ought to be made before the determination of an asylum claim.
Duncan Lewis and DPG brought judicial review proceedings on behalf of two clients who received positive conclusive grounds decisions but the Home Office refused to consider their eligibility for discretionary leave until their asylum claim had been determined. This ‘scheduling’ was applied in spite of the rule having been quashed by an order in the case of JP and BS last year.
The decision notes that the blanket application of this rule was not only incompatible with the Council of Europe Convention on Action against Trafficking in Human Beings, it also unjustifiably discriminated against victims of trafficking who also claimed asylum and failed to take into account an individual victim’s personal circumstances. In JP and BS, Professor Katona provided witness evidence which noted that the failure to make discretionary leave decisions for survivors of trafficking would likely result in a lack of stability and hinder necessary engagement in therapy.
Our client is a Chinese woman who was trafficked to the UK in June 2013 for the purpose of sexual exploitation. While in the UK, she was then held captive for six months, beaten and repeatedly sexually assaulted by numerous men. As a result of her experiences, she developed Post-Traumatic Stress Disorder, Generalised Anxiety Disorder and Major Depressive Order. Expert evidence noted that her psychological recovery was being impeded and, indeed, her mental health was deteriorating as a result of the ongoing threat of removal to China and her fear of re-exploitation there.
On 15 April 2020, our client received a positive Conclusive Grounds decision. On the same day the Home Office refused to consider her eligibility for leave until her asylum claim was determined.
Despite our client’s specific vulnerabilities and the deterioration resulting from her being kept in limbo, the Home Office unlawfully applied the scheduling rule.
The Home Office has now conceded that they had unlawfully refused to consider whether to grant discretionary leave to confirmed victims of trafficking, pending a decision on their asylum claim. As such, the Home Office had breached Article 14 of the European Convention on Human Rights in the blanket application of the scheduling rule in our client’s case.
The Home Secretary has now agreed to withdraw her decision to refuse to consider our client’s eligibility for discretionary leave. The Home Office has stated that they will soon be publishing amended guidance in respect to discretionary leave for survivors of trafficking and slavery.
Immigration detention and trafficking
by Tom Nunn, Immigration Solicitor at ATLEU North and
Adam Spray, Legal Manager at Bail for Immigration Detainees
In the UK a huge number of victims of trafficking are detained in immigration detention centres every year. Any lawyer working with clients in immigration detention should be familiar with trafficking law and process and be vigilant about identifying indicators of trafficking. If trafficking indicators exist, requesting that your client is referred into the National Referral Mechanism (NRM) can be extremely useful for their substantive immigration claim and to secure their release from detention.
What to look for
First contact with lawyers
Immigration detention is in many ways the front line for immigration lawyers. Whilst working in detention, you are likely to come across people who have never had a legal representative and who may be having their first interaction with the immigration authorities. Many people will have been picked up directly from raids on their places of exploitation and may not yet have disclosed to anyone that they have suffered in this way.
It is crucial for lawyers to ask the right questions in order to discover whether these indicators are in place. One of the first questions lawyers should ask people in detention is ‘how were you picked up by the authorities?’ Their answer is likely to be telling – those picked up during raids on places of work may have been being exploited and follow-up questions should be asked.
It is also important to ask how they have been supporting themselves in the UK as those in detention are unlikely to have had the right to work legally immediately prior to detention.
Many exploiters will have told those that they are exploiting, that if they go to the authorities, they will be locked up and sent back to their country of origin. They have now been locked up and the Home Office are threatening to return them to their country of origin. They will often have a misplaced sense of loyalty to their traffickers. Their trust in you as a legal representative will be hard won.
Allow people you are working with to slowly reveal their story and be flexible with accounts that seem to contradict what has gone before. Disclosure in this situation is likely to be a gradual, somewhat bumpy process.
You must remember that most victims of trafficking will not identify as such. They are unlikely to understand the concept of trafficking and will frequently not see themselves as having been exploited. For all these reasons it is important to be alive to anything you are told that does not quite make sense.
Lawyers should be aware of generic indicators of trafficking. These include, but are not limited to:
- Deception about the nature of their job, including the type of work undertaken, conditions of work, housing and living conditions and wages
- Working in conditions without respect of labour laws and without a signed contract
- Excessive working days or hours
- Confiscation of documents
- Debt bondage
- Isolation, confinement or surveillance
- Violence or threats of violence
- Abuse of any vulnerabilities, be it economic, social or of the victims of illegal status
- Deception through promises of marriage or adoption.
Those with criminal convictions
Given the nature of the detention population, a lot of people have arrived directly from prison (or may still be held in prison under immigration powers). Often these people have not had access to legal advice concerning their immigration matter and may already be fairly far along the deportation process. This may mean that positive indicators that they are victims of trafficking have been missed.
Anyone working in detention will have met Vietnamese trafficking victims who have been convicted of cannabis cultivation. Often these people have never been referred into the NRM despite clear indicators that their conviction may be directly connected to their exploitation.
Even if they have been referred into the NRM, due to the inadequate access to legal advice in prison, they may have a negative reasonable grounds (“RG” – the decision from the government that you might be a victim of modern slavery) or conclusive grounds (“CG” – the decision from the government that they think you are a victim of modern slavery) decision as they have had no one to advocate on their behalf.
It is crucial that lawyers are aware that they can request reconsideration of negative decisions in these circumstances, using the government’s process to look at a negative decision again that is set out in their policy guidance. If this is the appropriate course of action, it will be important to identify why the previous referral was found to be negative and then take instructions on these points. The alternative means of challenging a negative CG or RG decision is by way of judicial review.
Lawyers should be requesting documents from the client’s criminal case immediately as trafficking indicators may present there – in the sentencing remarks regarding mitigation or elsewhere, for example, in notes about what they said or how they came across at the police station when they were first interviewed. While the criminal courts are becoming more alive to trafficking issues following the Modern Slavery Act, there is still a long way to go and so immigration lawyers will often be able to find things that have been missed by others.
It may also be appropriate to refer to the individual to a criminal lawyer who specialises in appealing convictions and sentences.
There has recently been an influx of people into detention who the Home Office are trying to remove via charter flight to other European countries as part of the Dublin III convention processes. It is imperative to talk to these people about their journeys to the UK and whether they have been exploited along the way. There is a huge amount of exploitation occurring in places like Libya and Yemen due to the instability in these countries.
Often when dealing with clients with strong asylum claims, practitioners may avoid trying to get their clients referred into the NRM – as it slows down the application process, provides the Home Office with a further opportunity to make adverse credibility findings and may not be at all central to the client’s asylum claim.
However, for those in detention (and especially those who are in the Dublin III process), a referral into the NRM is likely to be the correct course of action. Often, where these indicators exist, and where referrals are made into the NRM, people in this situation have their tickets cancelled, are released from detention and many are very quickly granted refugee status once the Home Office decides their cases can be dealt with in the UK.
For legal aid practitioners, it is also important to note that any client that has been taken on by the Duty Detention Advice scheme will be able to have their asylum claim billed at hourly rates, even if they are released as part of this process.
Referring into the NRM
Once you have become aware of the presence of trafficking indicators, the next step (as long as your client consents to this) is to get your client referred into the NRM.
In normal circumstances, with clients not in detention, we would recommend that the Home Office is approached as a First Responder (the body or organisation that is permitted to make a referral into the NRM) as a last resort. However, for clients in detention, these considerations are likely to be different.
Support organisations are reluctant to act as First Responders when the Home Office is involved in the day to day control of the individual. Although you could try approaching others to make a referral, for example, the Salvation Army, they may refuse the request.
Remember, the Home Office are both First Responders AND the detaining authority. This provides two reasons why they cannot ignore any requests made by legal representatives for their clients to be referred into the NRM.
In practice, where there are trafficking indicators, a short letter to your client’s Home Office caseworker highlighting this will immediately lead to further investigation by the Home Office and may well lead to your client’s release.
Trafficking and bail
There are two main things to consider when making a bail application for someone you suspect to be a victim of trafficking.
Adult at Risk policy
If your client has positive indicators of trafficking, hopefully they will have been referred into the NRM. Depending on the stage of the NRM process, different aspects of the Adult at Risk (AAR) policy can be argued.
Pre- RG decision: At this stage, your client should be accepted as at least an AAR level 1. They have self-reported that they are a victim of trafficking, which is one of the recognised vulnerabilities and therefore should be considered an Adult at Risk.
For AAR level 1, they can only be considered suitable for detention if ‘the date of removal can be forecast with some certainty.’ Clearly, this cannot be the case in this situation as the Home Office needs to make an RG decision prior to taking any removal action against your client. This will therefore provide a strong argument that they should be granted bail.
Post-positive RG: If your client has been provided with a positive RG decision, your client’s bail application should be very strong. Your client is at least an AAR level 2 and therefore your client should only be detained if ‘the date of removal is fixed, or can be fixed quickly, and is within a reasonable timescale.’ The positive RG provides your client with the 45 day rest and rehabilitation period and so no enforcement action can take place. Your client would therefore have a strong case for bail.
Lawyers must think carefully about the address to which your client, who is a potential victim of trafficking, would be released to. Due to the lack of trust for the system mentioned above, release from detention poses an extremely risky time for people in terms of them returning to a situation of exploitation.
The Home Office will often just release the individual with no instructions in their own language and no understanding of where they need to go. On a number of occasions, people have been released from detention but never made it to their bail accommodation and disappeared without a trace. Many of these people will only resurface when they have been re-detained following a further period of exploitation.
This situation has been exacerbated by the recent changes to the Section 4 policy in detention and the increase in releases by the Home Office to no fixed abode – or sometimes, to any address provided by the client without supporting documentation. The reality is that a large number of people are now being released from detention into homelessness and destitution – thus substantially raising the risk of further exploitation.
One important thing for practitioners to note is that if your client is in the NRM process, they may be entitled to safe house accommodation. Practitioners should approach the Salvation Army if they are working with someone in detention who is in the NRM as often they will be able to provide accommodation in safe houses and crucially, transport from the detention centre to this accommodation. They will also often consider requests where a negative RG or CG is under consideration for someone in detention.
If anything in this article means you would like to talk through a query on your client’s case, ATLEU runs a second tier advice service where we respond to queries once a week. You can email your query to firstname.lastname@example.org If it is urgent please ring our office on 020 7700 7311 and we will try to help if someone is available. Unfortunately, we usually cannot review documents as part of our second tier advice service.
Advice for applications under the EU settlement scheme by Carita Thomas
Warning – this blog contains the ‘B‘ word.
But don’t look away because the government’s scheme for European nationals to gain permission to stay in the UK is set to open fully by 30 March 2019. Read more about this here.
It’s important for some clients to get a form of permission to stay via this scheme sooner rather than later. But everyone should always get advice about whether this is the right option for them first, and if it is, what needs to happen to get ready for an application.
The Joint Council for the Welfare of Immigrants (JCWI) took the government to court over the way the European Settlement Scheme had been set up. The government has now agreed to make some changes to the system, so the case has come out of court. These changes were important to make sure the scheme was fairer and a better fit with the government’s public statements about the scheme before it started.
Importantly, the government confirmed as part of the agreement to end the court case that no one will be refused settled status because they have not been working in the UK, or only working part time, or if they do not have comprehensive sickness insurance. This is not something that has been confirmed for people who have been living in the country less than five years and will be applying for pre-settled status or limited leave to remain. However, if the government has made this promise for people at the five year point then it is a good idea to argue this should apply for people who have been here less than five years too.
We are glad to have helped on this case with evidence about how the scheme could negatively affect victims.
A right to legal aid for victims
Any victim of trafficking or modern slavery with a decision that they might be or are a victim (called a positive ‘reasonable’ or ‘conclusive’ grounds decision) can get legal aid for immigration advice on their applications under the EU Settlement Scheme (they will need to meet the financial test for legal aid, in the same way as everyone else).
Paul Blomfield MP has asked a number of helpful parliamentary questions to do with Brexit and victims. These made the government clarify that legal aid exists for applications under the European Settlement Scheme.
A victims’ right to legal aid for immigration advice on applications under the settlement scheme is solid. What they are applying for is a grant of indefinite leave or limited leave to remain.
‘Immigration status granted under the EU Settlement Scheme is either indefinite leave to remain (ILR) – also referred to for the purposes of the scheme as ‘settled status’ – or five years’ limited leave to remain (LTR) – also referred to as ‘pre-settled status’ ‘ – quoted from the Home Office caseworker guidance.
These words about ‘leave to remain’ are important as they mean Europeans making applications like this come under the wording of the law about legal aid. Click here for more information.
Another helpful document to use when justifying why victims can get legal aid for this work can be found here.
If any lawyer or the Legal Aid Agency says this work cannot be done on legal aid, please point them to the links in this blog post. If you are a lawyer, you can add print outs from these links to your file so there will be no argument over payment later.
Applications for victims will often be complicated because of many issues such as:
- A lack of documents to show the length of their residence in the country;
- Lack of identity documents in the form that the Home Office requires or money to get new ones;
- Criminal convictions associated with a history of exploitation;
- The use of their identity to claim benefits or work by other people that has created false records on government systems.
The list goes on. They will need time, advice and professional interpreters that can all be paid for by legal aid. If you are a legal aid lawyer, it is likely that cases like this will meet the ‘escape’ case threshold with the amount of preparation work that needs to be put in, meaning you should be paid for the actual time you spend working for your client.
If you have a client who does not meet the legal aid rules financially, or if they cannot find a legal aid lawyer to take their case, they may be able to get free advice thanks to a government fund to help charities and community groups supporting EU nationals.
Look out for organisations advertising that they can offer this funded service near you. However, victims often have complicated cases and there is no requirement for people working under the government fund to have accreditation to work on anything more than basic cases. Always check the person helping you is qualified to advise at the right level. Find out more information here.
We have had one client successfully go through the test phase of the EU Settlement Scheme and be granted indefinite leave to remain. That client did not have proof of their residence in the UK for every year that they claimed to have been here, in the format that the government originally asked for. We had to explain their circumstances going through exploitation to show why they did not have the necessary documents.
Other clients were not able to take part in the government pilot as they would only accept people to test the system who had a valid biometric passport. Many victims have good reasons why they do not have this sort of document. It is a shame the government did not test the scheme under the true conditions faced by most vulnerable people.
We hope that after the scheme opens fully from 30 March 2019, the government will live up to its statement about a flexible approach to evidence presented by victims, whether that is about their identity, nationality, or their residence in the UK.
Paul Blomfield MP’s parliamentary question about victims using the settlement scheme is available here, and is useful to quote (ignoring what it says about fees as that has now changed).
It contains a commitment by the government to be flexible over documents but the applicant will have to explain that they do not have items for reasons beyond their control or because they have a compelling practical or compassionate explanation. If you are supporting a victim you may be able to help them with a letter with information about why it is hard for them to get certain documents because of any information you know about their personal circumstances now or in the past and why requiring them to get them will cause them big problems.
You can give your opinion as a professional working with the victim to say if you think the government should be flexible over document requirements in this particular case. (For example, does the client urgently need to have confirmation of their right to stay in the UK that means they do not have the time to get certain documents in the required form? Will they get into debt with the cost of travelling to an embassy in London and applying for a new identity document if they have limited income at the moment? Is there a risk of re exploitation or harm if they think they need to get documents they have to pay for or go back to anyone they lived or worked with in exploitation to find documents?)
National Crime Agency files are easy to get!
Despite the government’s commitment to flexibility, a victim can get a head start by requesting a copy of their file from the National Crime Agency (the body that will have processed most cases to identify victims who are from a European country). This file will have information that confirms the person has been identified as a victim of modern slavery, proving why they should benefit from flexibility. Hopefully it will also show their residence in the UK has been accepted for a certain period of time because of exploitation if they have no other proof of this. That information can then be submitted with an application to the Home Office, if it is helpful for the client.
Ask for your file for free by contacting the National Crime Agency via this email address: email@example.com.
You will need to provide copies of two official documents bearing the applicant’s name, date of birth, signature and current address, for example a passport, birth certificate, driving licence, medical card, or any other document that has their name and current address.
If you do not have the above, just explain why this is and provide your best alternative.
If you are writing for someone else, you should provide a signed form of authority from them to disclose information to you.
Ask for the full copy of the file including the referral form, any ‘consideration minutes’ (this means reasons for decisions that have been taken), reasonable and conclusive grounds decisions, correspondence or other documentation that it is held.
A copy of the information should be sent out within the end of one month after all the information they need to find the applicant is provided.
Carefully check the information from the National Crime Agency, to make sure you are happy with it, before sending it to the Home Office. This should be done by a lawyer working with the victim. The victim or their support worker can save a delay on making the application by asking for this file as soon as possible so they have it ready to show a lawyer when they meet.
Good luck to everyone facing this brave new world – we are sure there will be more to write about this topic soon. We would be interested to hear about your experiences for victims within the system, good and bad, so we can draw attention to the things that work well and those that need to be improved. Contact us at firstname.lastname@example.org.
Concerns that new trafficking guidance is unlawful despite clear ruling by Nina Rathbone Pullen
After a clear judgment was handed down earlier this year in PK (Ghana) v Secretary of State for the Home Department  EWCA Civ 98 (‘PK’), practitioners are concerned about the Home Office’s new guidance which may instead make it harder for victims to be granted discretionary leave to remain.
This decision concerns the UK’s obligations to victims of trafficking, who require leave to remain in the UK owing to their personal situation.
Like many victims of trafficking, our client PK, had experienced prolonged and severe breaches of his human rights, resulting in long-standing mental and physical health concerns. He was given a positive Conclusive Grounds decision but the Home Office refused to grant him leave to remain. His fresh asylum claim had yet to be considered.
The question for the Court of Appeal was whether the Secretary of State’s policy guidance in force at the relevant time gave effect to the UK’s obligations under Article 14(1)(a) of the European Convention on Action against Trafficking in Human Beings (ECAT).
The judgment helpfully confirms that the obligation to grant discretionary leave based on a survivor’s personal situation is linked to the purposes of ECAT; specifically, the objective to protect and assist victims of trafficking. As a result, decision makers should now be asking themselves whether the person’s stay in the UK is necessary in order for the UK to protect and assist them.
Summary of the judgment:
- Article 14(1)(a) of the Convention states that a renewable residence permit (i.e ‘discretionary leave’ in the UK system), shall be issued to a victim if the individual’s stay in the member state is ‘necessary owing to their personal situation’. The Court of Appeal found that ‘necessary’ in Article 14(1)(a) has to be seen through the prism of the objectives of ECAT; and the competent authority has to consider whether the person staying in the country is necessary in the light of and with a view to achieving those objectives (44).
- The only relevant objective is to protect and assist victims of trafficking. The Court found that the Secretary of State’s Guidance neither required nor prompted any such engagement with the objectives and was therefore unlawful.
- The Court went on to consider whether the Secretary of State’s Guidance imposed too high a threshold, in that it required the individual’s personal circumstances to be ‘so compelling’ that they should be granted a period of leave. Again, the Court found that there was a real – indeed, a very substantial – risk that, on the basis of the policy guidance the decision maker would apply a higher threshold than that required by the Convention (57).
The implications of the new guidance published in September and how it is applied by decision makers will need to be monitored, as it could lead to further litigation. Meanwhile, practitioners can continue to rely on the judgment in PK to argue that where their client continues to require protection and assistance, their stay in the UK is necessary in accordance with the Convention.
Nina Rathbone Pullen, partner in Wilsons LLP Public Law department, specialises in judicial review and civil claims for compensation against the state, with a particular focus on the rights of people held in immigration detention. Her work representing victims of trafficking and Modern Day Slavery has had a lasting and positive impact on this area of law, clarifying and upholding the UK’s obligations to individuals who have survived human trafficking.
Receiving a brief by Rebecca Pickering
This blog discusses the challenge of representing a victim of trafficking. I have done this from counsel’s perspective, so this is by no means a complete guide, but rather some points to consider. Just as there is no typical victim of trafficking, I do not believe that there is only one way of caring for a client at court who has survived trafficking.
When I receive a brief which involves a victim of trafficking, I read through it and ask myself the difficult questions:
- Am I the right representative for this client?
- Would this client be better served with counsel of the same sex?
- Do they need someone with more experience?
- It is an honest conversation that I would urge each counsel to have.
Once I have decided to accept a brief there are two further things I consider:
- After reading the witness statement or the asylum interview, is there anything I need clarifying or want to know in further detail to help advance my client’s case? My instructing solicitor will have taken considerable time and effort to foster an environment of trust allowing the client to give their instructions without fear. I prefer not to leave further questions to the day as this may make my client anxious. Victims of trafficking are inherently vulnerable. I am always mindful of the impact of trauma and getting a client to relive this in a new and stressful environment.
- What are my client’s expectation for the hearing? While each client is different, there is one common thread that runs through each trafficking case: loss of control. Give the control back! What would give them the best possible experience? An all female court? The judge sitting on the same level as you? Do not presume but be mindful to ask the right questions. We have the guidance note for vulnerable clients which enables us to do this and more!
The Human Trafficking Handbook is another useful source of information which includes contributions from specialist lawyers working in the trafficking field across the UK.
Rebecca Pickering is a barrister at Kenworthy’s Chambers, specialising in immigration and asylum law, with a particular interest in protection based claims.